NEW JERSEY LAWYER

DAILY BRIEFING      06/23/2005


News Briefs

RESTORATION OF PUBLIC ADVOCATE BACK ON TRACK
After several fits and starts, final legislative passage of a measure re-establishing the cabinet-level Department of Public Advocate is expected Thursday in Trenton. Democrats who control both houses are solidly behind the legislation, A-1424 and S-541, and the Assembly is expected to easily ratify Senate amendments and send the legislation to the governor. The department, which had taken on other state agencies and often represented the indigent, children and others, was abolished in 1994 by the Republican administration of Gov. Christie Whitman. Its resurrection has been on hold since Democrats took control of the governor’s office in 2002. 6-22-05

THIRD CIRCUIT JUDGE LEADS JUDICIARY COMPLAINTS ABOUT HIGH RENTS
Third U.S. Circuit Judge Jane R. Roth has been leading the Administrative Office of the U.S. Courts’ complaints about being forced to pay too much rent for its courthouses. Roth, who chairs the federal judiciary’s Committee on Securities and Facilities, has made clear to Congress that rental relief “is critical to the continued functioning” of federal courts. The federal AOC, which pays its rent to the General Services Administration, claims high rents, combined with limited funding in fiscal 2004, factored into its decision to reduce staff nationwide 8 percent despite increased case loads. 6-22-05

FORMER PROMINENT NJ OFFICIALS ATTACK FED SENTENCING GUIDELINES
Seven who have worked in New Jersey courts are among 163 former and retired U.S. attorneys and U.S. district judges joining in an amicus brief to the U.S. Supreme Court that challenges the use of federal sentencing guidelines. The brief in U.S. v. Angelos claims the trial judge in U.S. District Court in Utah “unfairly stacked the charges” to set the 55-year prison term for a first-time offender convicted of weapons and drug charges. The amici with New Jersey connections are former U.S. District Judges: H. Curtis Meanor, Stephen M. Orlofsky, Herbert J. Stern and Alfred J. Wolin, and former U.S. Attorneys Robert J. Del Tufo, now with Skadden Arps in New York, William W. Robertson of Newark’s Robertson, Freilich, Bruno & Cohen, and David M. Satz Jr., now with Saiber, Schlesinger Satz & Goldstein, also in Newark. 6-22-05

CODEY NOMINATES TWO FOR ADMINISTRATIVE LAW JUDGE
The state Senate soon is expected to consider acting Gov. Richard J. Codey’s nominations as administrative law judges of J. Howard Solomon, a Teaneck sole practitioner, and JoAnn LaSala Candido, a Newark-based deputy attorney general. 6-22-05

GYPSIES SUE DENNY’S RESTAURANTS FOR DISCRIMINATION
group of Romany churchgoers, often known as Gypsies, has filed suit in Atlantic County against Denny’s Corp. alleging the restaurant chain’s franchise in Galloway repeatedly refused to serve them because of their ethnicity. Their attorney, Dara Quattrone of Atlantic City’s Westmoreland, Vesper & Quattrone, said restaurant employees told her clients that “we don’t serve your kind of people.” The restaurant claims the plaintiffs were disruptive. 6-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JUNE 22, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JUNE 22, 2005:

EMPLOYMENT LAW
YURICK v. STATE OF NEW JERSEY
New Jersey Supreme Court, A-34/35, June 22, 2005. (21 pages). Facts-on-Call Order No. 92531

In an action by a former county prosecutor that alleged (1) that State officials violated the Conscientious Employee Protection Act by exercising their statutory authority to supersede him as prosecutor and (2) that county officials violated CEPA by underfunding his budget, there was no cognizable CEPA claim because the specific facts alleged did not include the type of “retaliatory action” that is actionable under CEPA.

THE SUPREME COURT has announced that it will release an opinion in STATE v. CUMMINGS, A-65, on June 23, 2005. The issue on appeal in Cummings addresses whether due process is violated by applying the preponderance of the evidence standard to prove the charge of refusal to submit to a Breathalyzer test.



APPROVED FOR PUBLICATION
RELIGIOUS CORPORATIONS
ROMEO v. SETON HALL UNIVERSITY
Appellate Division, A-1191-04T1, approved for publication June 22, 2005. (16 pages). Facts-on-Call Order No. 92536

In an action arising from Seton Hall University’s denial of a student’s application for recognition of a gay and lesbian student organization, the student’s claim under the Law Against Discrimination and his claim for breach of contract failed as a matter of law.

MEDICAL MALPRACTICE
MARSHALL v. KLEBANOV
Appellate Division, A-2237-03T5, approved for publication June 22, 2005. (20 pages). Facts-on-Call Order No. 92532

The purpose of N.J.S.A. 2A:62A-16 is not to immunize mental health practitioners from all liability for a patient’s suicide, regardless of the reasonable likelihood of suicide or the gravity of the practitioner’s deviation from the pertinent standard of care. Judge Fuentes dissented.

PUBLIC EMPLOYEES
HARRIS v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
Appellate Division, A-4710-03T5, approved for publication June 22, 2005. (10 pages). Facts-on-Call Order No. 92534

The decision of the Board of Trustees of the Public Employees’ Retirement System that denied the surviving husband’s request to revise the decedent’s pension option choice was arbitrary and capricious and was not supported by the record. Although the decedent did not make the change within 30 days after the effective date of her retirement, she was deprived of the benefit of the full period because she was rendered mentally and physically incapacitated during that period, and the husband was thus entitled to a tolling of the time limitation.

SENTENCING
STATE v. MATTHEWS
Appellate Division, A-4276-03T4, approved for publication June 22, 2005. (14 pages). Facts-on-Call Order No. 92533

A defendant who is subject to any of the statutory limitations of N.J.S.A. 2C:35-14a, b, or c may not be sentenced into a drug court program under N.J.S.A. 2C:45-1, which places general conditions on probation.

PARDON AND PAROLE
SALVADOR v. DEPARTMENT OF CORRECTIONS
Appellate Division, A-6126-03T5, approved for publication June 22, 2005. (5 pages). Facts-on-Call Order No. 92535

To resolve the issue reserved by Meyer v. New Jersey State Parole Bd., commutation credits earned by an inmate cannot reduce a five-year period of parole supervision mandated by the No Early Release Act.

NOT APPROVED FOR PUBLICATION
DISCOVERY
HARBOR COMMUTER SERVICE, INC. v. FRENKEL & CO., INC.
Appellate Division, AM-672-04T2 and A-5343-04T2, June 22, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18137

Order allowing the defendants to take a de bene esse deposition of a witness and reopening discovery reversed; the first judge found that the defendants had violated his case management order by serving notice on the day after discovery closed to take the videotaped deposition of the witness; subsequently, the first judge entered orders (1) denying the defendants’ motions for leave to conduct the deposition due to the absence of “exceptional circumstances,” (2) granting the plaintiffs’ cross-motion for a protective order and precluding the parties from deposing the witness, and (3) denying the defendants’ motion for reconsideration; another panel of the Appellate Division denied the defendants’ motions for leave to appeal the adverse orders, but when the first judge was reassigned to another court the new trial judge granted the defendants leave to depose the witness, who allegedly would be unavailable to testify at the trial, and allowed reopening of discovery; the trial judge incorrectly determined that he had the authority to review the first judge’s discovery rulings and to reopen discovery 21 months after it was closed because the only changed circumstances — the reassignment of the first judge and the assignment of this case to a new judge — were not legitimate bases for that relief.

WORKERS’ COMPENSATION
DRAKE v. MICRO WAREHOUSE, INC.
Appellate Division, A-2835-03T3, June 22, 2005, not approved for publication. (30 pages). Facts-on-Call Order No. 18138

Workers’ Compensation court order in favor of the petitioner and against the defendant employer and workers’ compensation insurers affirmed in part and reversed in part; the compensation court (1) found a permanent partial disability of 20 percent of the right arm as the result of right lateral epicondylitis and 20 percent of the right hand as the result of right carpal tunnel syndrome and (2) ordered the first insurer of the plaintiff’s part-time employer to reimburse the Division of Employment Security for temporary disability benefits it had paid to the plaintiff; the compensation court’s finding of a causal relationship between the petitioner’s epicondylitis and her part-time employment was not adequately supported by the evidence; the award against the successive insurer had to be reversed because its proportion of liability could not be ascertained “at all”; sufficient evidence supported the award against the first insurer for the petitioner’s permanent partial disability as the result of right CTS; remand was necessary for a finding of whether the petitioner was entitled to temporary disability benefits under applicable workers’ compensation standards.

ESTATES AND TRUSTS
JANES v. ESTATE OF MATUSEVICH
Appellate Division, A-4322-03T1, June 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18136

Summary judgment for the plaintiff life insurance policy beneficiary in an action to recover the policy proceeds affirmed; in a life insurance policy obtained through his employer, a friend and former romantic partner of the plaintiff named her as his beneficiary; after the friend died, the defendant estate claimed entitlement to the policy proceeds; when the plaintiff sued to obtain the proceeds, the defendant insurer paid them into court and was dismissed from the case; summary judgment was properly granted because the estate’s claim to the funds was based (1) on a misrepresentation that the decedent was told that there was no beneficiary designation after the company that employed him was spun off from its parent company and (2) on an erroneous legal theory that the decedent had intended to change his beneficiary by taking no action after allegedly being told that there was no beneficiary designation.

ATTORNEY’S FEES
DEERBROOK II CONDOMINIUM ASSOCIATION v. ZARRELLA
Appellate Division, A-5469-03T3, June 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18134

Award of $529.80 in attorney’s fees to the plaintiff condominium association affirmed; the plaintiff requested $1,466 in attorney’s fees and costs in connection with a default judgment that was entered in an action to collect unpaid assessments from the defendant unit owner; after the plaintiff was notified by the Clerk’s Office that a judgment had been entered, the trial court entered a reduced judgment that limited the fee award to 20 percent of the amount of the assessments; following the plaintiff’s appeal, the trial court sent a supplementary letter to the Appellate Division Clerk pursuant to Rule 2:5-1(b) that explained that the $1,466 fee award was not justified under Rule of Professional Conduct 1.5; although the trial court arbitrarily limited the fee award, it corrected the error through its letter, which contained the appropriate analysis.

PARENT AND CHILD
FULLERTON v. IPPOLITO
Appellate Division, A-1036-04T2, June 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18133

Family Part order directing the parties to share joint legal custody of their 3-year-old child affirmed; as the result of domestic violence proceedings between the parties, the plaintiff mother had been granted sole custody, and a consent order directed the Bergen County Family Center to perform an evaluation and to make recommendations about custody and parenting time; after the Center issued its report, the Family Part held a hearing and entered its order; contrary to the plaintiff’s arguments on appeal, (1) the Family Part order was “merely a decretal recognition” of the parties’ equal rights to custody under N.J.S.A. 9:2-4, (2) although technically no plenary hearing was conducted, there would be no advantage gained by remanding for a plenary hearing in light of the parties’ full participation in the Family Part, and (3) the Family Part did not disregard the parties’ “evident difficulties” in communicating with each other.

DRUNK DRIVING
STATE v. MONTERO
Appellate Division, A-1225-04T1, June 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18135

Conviction of driving while intoxicated affirmed; the State Troopers testified that, while on patrol, they found the defendant behind the wheel of a car that was parked on the side of the Garden State Parkway with its engine running and with its lights on; the Troopers had not observed the car in that location during their patrol about 45 minutes before; contrary to the defendant’s arguments on appeal, (1) the Troopers’ testimony, if accepted by the fact-finder, permitted a finding of operation beyond a reasonable doubt and (2) the rejection by both the Municipal Court and the Law Division of the defendant’s assertion that he did not consume half a bottle of whiskey until after he had parked his car was compelling.


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